State v. Bienvenu

• Decision Date: 02 November 2011
• Docket Number: 11-491
• Parties: STATE OF LOUISIANA v. WENDELL JOSEPH BIENVENU
• Court: Court of Appeal of Louisiana — District of US

STATE OF LOUISIANA

v.WENDELL JOSEPH BIENVENU

11-491

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Dated: November 2, 2011

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE

FIFTEENTH JUDICIAL DISTRICT COURT

PARISH OF LAFAYETTE, NO. CR 128182

HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

JOHN D. SAUNDERS

JUDGE

Court composed of John D. Saunders, Jimmie C. Peters, and Marc T. Amy, Judges.

AFFIRMED.

William Thomas Babin

Counsel for Plaintiff/Appellee:

State of Louisiana

Michael Harson

Counsel for Plaintiff/Appellee:

State of Louisiana

Donald D. Cleveland

Attorney at Law

Counsel for Defendant/Appellant:

Wendell Joseph Bienvenu

SAUNDERS, Judge.

The Defendant, Wendell Joseph Bienvenu, was charged by bill of information filed on April 6, 2010, with carnal knowledge of a juvenile, in violation of La.R.S. 14:80, and distribution of Alprazolam, in violation of La.R.S. 40:969. The Defendant entered a plea of not guilty on May 18, 2010. On September 20, 2010, the Defendant entered a plea of guilty to carnal knowledge and the distribution charge was dismissed. The Defendant was sentenced on January 20, 2011, to serve ten years at hard labor. Four years of the sentence were suspended, and the Defendant was placed on five years' supervised probation. A motion to reconsider sentence was filed on February 16, 2011, and was subsequently denied. A motion for appeal was filed on March 10, 2011, and was granted.

The Defendant is now before this court asserting six assignments of error. Therein, he contends the following: 1) his sentence is excessive; 2) the trial court failed to comply with La.Code Crim.P. art. 894.1; 3) the trial court erred in accepting his guilty plea without a proper factual basis; 4) the trial court failed to comply with La.Code Crim.P. art. 556.1; 5) the trial court imposed an indeterminate sentence; and 6) the record should be reviewed for errors patent. We find that these assignments of error lack merit and affirm.

FACTS:

On or about May 30, 2008, the Defendant had sexual intercourse with a female under the age of seventeen but over the age of twelve.

ERRORS PATENT & ASSIGNMENT OF ERROR NO. 6:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR NO. 3:¹

In his third assignment of error, the Defendant contends the trial court erred in accepting the guilty plea without a proper factual basis being established. Within this assignment of error, the Defendant makes claims regarding his being informed of and understanding the nature of the offense. We will address the claims regarding the nature of the offense in assignment of error number four, as the Defendant raises the issue in that assignment of error as well.

There is no requirement that a guilty plea be accompanied by the recitation of a factual basis for the crime. State v. Wynne, 40,921 (La.App.2d Cir.4/12/06), 926 So.2d 789 (citing State v. Griffin, 633 So.2d 358 (La.App. 1st Cir.1993), writ denied, 94-0240 (La.10/14/94), 643 So.2d 157[.] "[T]he due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea. . . . Louisiana law, unlike [federal law] has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis." State v. Wynne, 926 So.2d at 796). Due process requires a finding of a significant factual basis for a defendant's guilty plea only when a defendant proclaims his innocence or when the trial court is otherwise put on notice that there is a need for an inquiry into the factual basis. State v. Brooks, 39,963 (La.App. 2d Cir. 9/22/04), 882 So.2d 724, 730, writ denied, 2004-2634 (La.2/18/05), 896 So.2d 30.

State v. Yates, 41,247, pp. 3-4 (La.App. 2 Cir. 9/27/06), 940 So.2d 147, 150-51. Given the lack of requirement cited above, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4:

In his fourth assignment of error, the Defendant contends the district court failed to comply with La.Code Crim.P. art. 556.1.

Louisiana Code of Criminal Procedure Article 556.1 sets forth the duties of the trial court when accepting a guilty plea:

A. In a felony case, the court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.

(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.

(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.

(4) That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.

B. In a felony case, the court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.

C. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the district attorney and the defendant or his attorney. If a plea agreement has been reached by the parties, the court, on the record, shall require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered.

D. In a felony case a verbatim record shall be made of the proceedings at which the defendant enters a plea of guilty or nolo contendere.

E. Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.

The Defendant contends the following: 1) the trial court failed to advise him of the nature of the charge to which his plea was offered; 2) the trial court failed to ensure he was aware of and understood the maximum penalty he was exposed to; 3)the plea agreement did not set forth the provisions of La.R.S. 15:537 and La.R.S. 15:544; and 4) defense counsel's discussions with him regarding the terms of the plea agreement and his understanding of the terms of the plea agreement were not made a part of the record.

In support of his arguments, the Defendant cites the following portions of the Boykin colloquy:

THE COURT: If I understand what you've told me this evening, you've told me that you have had enough time to talk with your lawyers about all the facts and circumstances of your individual cases; is that correct?

. . . .

THE COURT: You've told me you've had enough time to talk with your lawyers about all the rights that you're waiving by pleading guilty; is that correct?

. . . .

THE COURT: You've told me you've had enough time to talk with your lawyers about all the terms of the plea agreement; is that correct?

The Defendant admits that he answered each of the trial court's questions affirmatively. He notes questions were directed to all defendants regarding information provided to them by defense counsel concerning the nature of the charges and the penalty to which they were exposed. However, he avers the record is devoid of what defense counsel may or may not have told him. Further, the Boykin transcript does not indicate whether defense counsel was present at the taking of the plea.² The Defendant asserts this is a critical concern because he pled guilty to the charged offense and threw himself on the mercy of the trial court.

The Defendant contends there is nothing in the Boykin transcript about the maximum penalty. He notes the only notice of the sentencing scheme would havecome from his attorney and what was written on the plea agreement form. The Defendant contends he entered into an open-ended plea and there were no real terms of the plea agreement other than the expectation of a pre-sentence investigation report. The Defendant asks, "What did that pre-sentence investigation mean to the defendant, Wendell Joseph Bienvenu? What had he been told by his attorney that the pre-sentence investigation meant within the legal system and its impact, if any, on the sentence the defendant would ultimately receive." The Defendant asserts these questions were not addressed on the record by the trial court before accepting his guilty plea, and there is nothing in the record from which the answers to these critical questions could now be inferred.

The Defendant contends that it cannot be assumed that an attorney would consider the possibility of the trial court suspending a portion of the statutory sentence only to impose a probationary period greater than the portion of the sentence that was suspended thereby making the total sentence more than that provided by La.R.S. 14:80. The Defendant contends it was necessary for the trial court to ask him if he had any knowledge of the penalty enhancement statutes or the possibility that he could receive a term of incarceration followed by a probationary period that could result in a sentence that would not be discharged for as many as twenty-one years. ³ The Defendant contends it is not now known exactly what defense counsel discussed with him about the terms of the plea agreement because that information was not made part of the record in open court as required by La.Code Crim.P. art. 556.1.

The Defendant also contends the plea agreement did not set forth the...